Strategies: Google’s goofy ad policy has got to go

Google’s ad sales group adopted a new policy that uses a feature that, supposedly, automatically thwarts trademark infringement and spits out a rejection notice to the applicant, stating that Google won’t run the ad.

Instead of being a state-of-the-art sleuth, however, the program grossly misapplies basic principles of trademark law, creating thousands of false positives and headaches for those seeking to advertise on the Google website.

Under the new system, Google compares the text of the proposed ad content against the federal trademark database. Once any direct match is found, the ad is rejected. But the number of false hits dwarfs the number of successfully thwarted infringements.

Using a myopic algorithm, the computer doesn’t evaluate the manner in which the allegedly offending text is being used, which leads to ridiculous results. The Google system snags an ad placement for a seminar at Fordham University, or one promoting a speaker named “Bedford,” because the computer flags the letters “f-o-r-d” and, using crack detective skills, identifies it as an attempt to infringe upon Ford Motor Co.’s trademarks.

Or, the applicant might use an acronym identical to one protected by a federal registration, only to have Google reject the ad regardless of whether one acronym applies to an athletic shoe and the other identifies a dental practice. Sherlock Holmes wouldn’t be impressed.

To be fair, Google does offer an appeal process in which the applicant can petition to have the ad reinstated by showing either that the term is simply used in its “ordinary meaning rather than in reference to the trademark,” or that the ad isn’t in reference to the goods or services “corresponding to the trademarked term.”

In other words, the computer applies the doctrine of “fair use,” under which a mere factual reference to another party’s trademark (such as a mechanic advertising that he works on Volkswagens) doesn’t infringe. That’s well and good, but there are other doctrines under which the use of even a term identical to a registered mark is deemed noninfringing.

The issue isn’t similarity, but whether the ad creates a likelihood of confusion, a concept Google’s algorithm ignores. And if someone wants to run ads using a supposedly offending term, they presumably have to use the appeal process each time because the computer won’t acknowledge past clearances. This not only upends the legal framework for trademark protection, it also wastes much time and energy of the applicant and Google staff, which has the unfortunate task of reading and responding to each and every appeal, 99 percent of which are no doubt valid.

Google recently settled its long-running feud with Rosetta Stone, resolving its claim that Google intentionally ignored, and profited from, the use of keyword advertising and other SEO strategies that divert traffic from search queries that use a competitor’s trademark. The case, which Google was probably going to lose, was settled on the eve of trial. The settlement terms were confidential, but Google’s new ad policy perhaps offers a glimpse as to how it’s chosen to address the problem.

Whether the new policy comes from the Rosetta Stone settlement, or is simply a quick and painless way for Google to show its deep respect for the rights of trademark owners, the fact is that no one else seems to have embraced the practice.

Bing’s policy, for example, simply states that the advertiser must ensure that the use of keywords and ad content “does not infringe or violate the intellectual property rights of others.”

Facebook, likewise, imposes strict guidelines on ad content, but ultimately states simply that ads may not include content that “infringes upon or violates the right of any third party.”

Twitter and Altitude Digital have the same approach.

In all of these cases, the onus is on the holder of the rights to speak up and say something, and each of these companies give easily accessible means for the trademark owner to voice objections. Only Google, however, has attempted to automate the process by adopting the illogical and legally unsupportable premise that any similarity between a federal trademark and words in ad content, or even strings of letters embedded within a word, equates to potential infringement.

Perhaps Google should heed the lesson learned decades ago by many secretaries of state. At one time, most of them would manually review business and trade name registrations to ferret out terms that potentially conflicted with prior established naming rights.

That proved not only unworkable but also often inaccurate. As a result, most secretaries of state now simply leave it to the trademark laws to adjudicate disputes between potentially conflicting terms.

It’s unlikely that Google’s system, or any computerized algorithm, could ever automatically apply legal doctrines in a way that would replace a judge and jury, or sound legal research. But if anyone could do that, Google could.

In the meantime, Google’s present automated system is an embarrassing, time-wasting clunker that should be tossed.

David Schachter, a member of the Denver law firm of Sherman and Howard LLC, and who specializes in intellectual property and technology law, can be reached at 303-299-8385 or dschachter@sah.com.